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INT-LAW  November 2007, Week 2

INT-LAW November 2007, Week 2

Subject:

Re: Chinese cases

From:

Wendy I Zeldin <[log in to unmask]>

Reply-To:

International Law Librarians List (Int-Law)

Date:

Wed, 14 Nov 2007 11:20:25 -0500

Content-Type:

multipart/mixed

Parts/Attachments:

Parts/Attachments

text/plain (99 lines) , ISINOLAW-Admin Law Interp.txt (1191 lines)

Dear William,

Please find attached a translation of the March 10, 2000, SPC interpretation of the Administrative Procedure Law, provided by the iSinolaw online subscription database.

Sincerely,
Wendy Zeldin

Dr. Wendy I. Zeldin
Senior Legal Research Analyst
Directorate of Legal Research
Law Library  LM240
The Library of Congress
101 Independence Ave. SE
Washington, DC  20540
T: (202) 707-9832
F: (202) 707-1820

>>> Rita Lam <[log in to unmask]> 11/13/2007 8:26 AM >>>
William - The web site of the PRC Supreme People's Court has the full
text of these two notices/judicial interpretations.  But there isn't any
English translation of them available, neither free or chargeable
sources (print and electronic).
 
FYI, the year of issue/promulgation of the first document should be
1992, not 2002.
 
Opinions of the Supreme People's Court on Certain Issues Concerning
Application of PRC Civil Procedure Law 
http://www.court.gov.cn/lawdata/explain/civilcation/200304020039.htm 
<http://www.court.gov.cn/lawdata/explain/civilcation/200304020039.htm> 
 
People's Supreme Court's Judicial Interpretations on the PRC
Administrative Procedure Law
http://www.court.gov.cn/lawdata/explain/executivecation/200303200097.htm 
<http://www.court.gov.cn/lawdata/explain/executivecation/200303200097.ht 
m> 

-Rita
 

<-----Original Message----->

 	  	 From: William Ryan [[log in to unmask]] 
Sent: 11/12/2007 10:31:26 PM
To: [log in to unmask] 
Subject: [Int-Law] Chinese cases 



Good morning,

 

I'm in need of two Chinese cases:

 

1.	Zui gao ren min fa guan yu shi yong <zong hua ren min gong he
guo min shi su song fa> ruo gan went I de yi jian, [ Opinions of the
Supreme People's Court on Certain Issues Concerning Application of PRC
Civil Procedure Law 2002] SUP. PEOPLE'S CT. GAZ., Art. 69 and;

 

2.	Zui gao ren min fa yuan guan yu zhi xing <zhong hua ren min gong
he guo xing zheng su song fa> ruo gan wen ti de   jie shi [People's
Supreme Court's Judicial Interpretations on the PRC Administrative
Procedure Law].

 

Thanks in advance.

 

William Ryan

Foreign & International Law Librarian

Pence Law Library

Washington College of Law

Washington, D.C.

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ISINOLAW-JI              PrintDownloadEnglish--Simplified                         English--Traditional             Bilingual Split Screen|        ‐Title/Interpretation of the Supreme People's Court on the             Execution of the Administrative Procedure Law of the People's             Republic of China             ‐Document No./Fa Shi [2000] No.8             ‐Promulgation Date/2000-03-08             ‐Effective Date/2000-03-10             ‐Repeal Date/             ‐Promulgation Body/The Supreme People's Court             ‐Status/Effective             ‐Status Description/             ‐Full Text/                    Interpretation of the Supreme People's Court on the Execution                   of the Administrative Procedure Law of the People's Republic                   of China                    (iSinoLaw Reference ID: 120-10015900)                   Full Text             In order to correctly understand and apply the Administrative             Procedure Law of the People's Republic of China (hereinafter             referred to as the "Administrative Procedure Law"), in consideration             of the practice in the administrative trial, we hereby issue the             Interpretation with respect to the execution of the Administrative             Procedure Law as follows:                                           Chapter I Scope of Acceptance                                           Article 1 If the citizen, corporation or other organizations refuse             to comply with the administrative act by the institution or             organization that has the state administrative authority and its             personnel as to take the administrative action according to law, the             people's court shall accept it as the administrative action.                             If the citizen, corporation or other organizations refuse to comply             with one of the following acts, the people's court shall not accept             it as the administrative action.             1. The act as stipulated in Article 12 of the Administrative             Procedure Law;             2. The act that is carried out by the public security or state             security authority under the clear authorization of the Criminal             Procedure Law;             3. The act of mediation or arbitration as stipulated by the law;             4. The administrative instruction act without the power of             enforcement;             5. The repetitiously handling act of the dismissal to the appeal of             the interested party against the administrative act; or             6. The act that does not practically affect the rights and interests             of the citizen, corporation or other organizations.                            Article 2 The act of state as stipulated in Item 1 of Article 12 of             the Administrative Procedure Law shall mean the act relating to the             state defense or foreign affairs carried out by the State Council,             the Military Commission of the Central Committee of the Communist             Party of China, the Ministry of State Defense and the Ministry of             Foreign Affairs under the authorization of the Constitution or law             in the name of the state, or the act carried out by the state             authority under the authorization of the Constitution or law             declaring the state of emergency, enforcement of the martial law or             the general mobilization, etc.                            Article 3 The universally binding decision or order as stipulated in             Item 2 of Article 12 of the Administrative Procedure Law shall mean             the administrative normative document that is issued by the             administrative authority, and directed at non-specifically             designated parties, and can be applied repetitiously.                            Article 4 The decision such as the award, punishment, appointment,             removal, etc. on the personnel of the administrative authority as             stipulated in Item 3 of Article 12 of the Administrative Procedure             Law shall mean the decision concerning the rights and obligations of             the personnel of the administrative authority made by the said             administrative authority.                            Article 5 The "law" in the sentence of "the specific administrative             act of the final award made by the administrative authority as             stipulated by the law" as stipulated in Item 4 of Article 12 of the             Administrative Procedure Law shall mean the normative document             formulated and passed by the National People's Congress and its             Standing Committee.                                           Chapter II Jurisdiction                                           Article 6 The administrative trial divisions of the people's courts             at various levels shall try the administrative cases and examine the             cases of the administrative authorities in terms of the application             for the execution of their specific administrative acts.             The special people's court or the people's courtroom shall not try             the administrative case, nor examine or execute the case of the             administrative authority in terms of the application for the             execution of its specific administrative act.                            Article 7 The decision of review shall mean to "change the original             specific administrative act" as stipulated in the Administrative             Procedure Law if it             1. changes the major facts and evidence determined by the original             specific administrative act;             2. changes the normative basis applicable to the original specific             administrative act and affects the determination of the nature; or             3. revokes or partially revokes or changes the handling measures of             the original specific administrative act.                            Article 8 The major or complicated case in the area under the             jurisdiction as stipulated in Item 3 of Article 14 of the             Administrative Procedure Law shall be             1. the case in which the defendant is the government at the county             level or above, and it is inappropriate for the basic people's court             to try it;             2. the case of joint or group litigation that is influential in the             society;             3. the major case concerning the foreign interests, or the interests             of the Hong Kong Special Administrative Region, Macao Special             Administrative Region, or Taiwan area; or             4. other major or complicated cases.                            Article 9 The locality of the plaintiff as stipulated in Article 18             of the Administrative Procedure law shall mean the plaintiff's place             of the registered permanent residence, the place of daily residence,             or the place where his right of personal freedom is restricted.                            If the citizen whose personal freedom is restricted, or the citizen,             corporation or other organization whose property is attached or             confiscated refuses to comply with the administrative punishment or             enforcement upon both the person and the property by the             administrative authority on the same facts, it may take legal             actions in the people's court in the place of either the defendant             or the plaintiff, and the people's court that accepts the cases may             have jurisdictions over all of the cases.                            Article 10 If the interested party raises the refuse to comply with             the jurisdiction, he shall raise it within 10 days since the date of             the receipt of the notice to respond to the action from the people's             court in written forms.             The people's court shall examine the refuse to comply with the             jurisdiction raised by the interested party. If the objection is             tenable, the people's court shall order the case to be transferred             to the people's court that has jurisdiction. If the objection fails             to be tenable, the people's court shall order to dismiss the             objection.                                           Chapter III Litigant Participant                                           Article 11 The close relatives as stipulated in the Administrative             Procedure Law shall include spouse, parents, sons, daughters,             brothers, sisters, grandparents, grandparents-in-law, grandsons,             granddaughters, grandsons-in-law, granddaughters-in-law and other             relatives of fostering or aliment relationships.             If the citizen is not able to take legal action because of             restriction upon his personal freedom, his close relatives may, by             his verbal or written entrustment, take legal action in his name.                            Article 12 The citizen, corporation or other organization that has             legal interests in the specific administrative act, may take legal             action according to law.                            Article 13 The citizen, corporation or other organization may take             the administrative action according to law if             1. his neighboring right or right of fair competition is concerned             with the specific administrative act accused;             2. he has legal interests in the administrative review decision             accused, or he is added to the review procedure as the third party;             3. he requires the competent administrative authority to impose the             legal liabilities on the inflicter according to law; or             4. he has legal interests in the cancelled or changed specific             administrative act.                            Article 14 If the partnership enterprise takes legal action in the             people's court, the approved registered tradename shall be the             plaintiff, and the partner that performs the mattes of the             enterprise shall be the litigious representative. If other             partnership organizations take legal action, the partners shall be             the joint plaintiffs.             If the organization that is not a corporation takes legal action in             the people's court, the leading official of the organization shall             be the litigious representative. If there is no leading official,             the official elected shall be the litigious representative.             If there are more than 5 plaintiffs in the same case, 1 to 5             litigious representatives shall be elected to participate in the             litigation. And if no person is elected within the designated time             limit, the people's court may designate the litigious             representatives according to its duties.                            Article 15 If the party in the association enterprise, or             Sino-foreign contractual joint-venture or cooperative venture             considers that the legal rights and interests of the enterprise or             his legal rights and interests are infringed by the specific             administrative act, he may take legal action in his own name.                            Article 16 If the holder of the right to use the land in the             countryside such as the contractor of the land refuses to comply             with the act of the administrative authority to handle the             collective-owned land in which he has the right of use, he may take             legal action in his own name.                            Article 17 If the non-state-owned enterprise is written off,             canceled, merged, annexed by force, sold, split, or changed in terms             of the subordination relation by the administrative authority, the             said enterprise or its legal representative may take legal action.                            Article 18 If the general meeting, the meeting of the             representatives of the share holders, or board of directors of the             joint-stock enterprise considers that the specific administrative             act of the administrative authority infringes upon the managerial             autonomy, the legal action may be taken in the name of the             enterprise.                            Article 19 If the interested party refuses to comply with the             specific administrative act approved by the superior administrative             authority, and takes legal action in the people's court, the             defendant shall be the administrative authority that affixes its             name on the binding instrument and issues it.                            Article 20 The administrative authority establishes the institution             and grants the administrative duty on it, but the institution does             not have the capability to independently bear the legal liabilities,             and the institution executes the specific administrative act in the             name of the administrative authority. Under these circumstances, if             the interested party refuses to comply with and takes legal action,             the administrative authority that establishes the institution shall             be the defendant.             With regard to the specific administrative act executed by the             internal division or agency of the administrative authority without             the authorization of the laws, rules or regulations in its own name,             if the interested party refuses to comply with, and takes legal             action, the administrative authority shall be the defendant.             If the internal division or agency of the administrative authority,             or other organization, which is authorized by the laws, rules or             regulations to execute the administrative duty, executes the             administrative act beyond the legal authorization, and if the             interested party refuses to comply with and takes legal action, the             internal division or agency of the administrative authority, or             other organization shall be the defendant.                            Article 21 Without the stipulation of the laws, rules or             regulations, if the administrative authority authorizes its internal             division, agency or other organization to execute the administrative             duty, this kind of act shall be deemed as an entrustment. If the             interested party refuses to comply with and takes legal action, the             said administrative authority shall be the defendant.                            Article 22 The review authority fails to make the review decision             within the legal time limit, if the interested party refuses to             comply with the original specific administrative act and takes legal             action, the administrative authority that executes the original             specific administrative act shall be the defendant. If the             interested party refuses to comply with the nonfeasance of the             review authority and takes legal action, the review authority shall             be the defendant.                            Article 23 If the defendant against whom the plaintiff takes legal             action is not qualified, the people's court shall notify the             plaintiff to change the plaintiff. And if the plaintiff does not             agree the change, the people's court shall order to dismiss the             litigation.             If the defendant shall be added to the case, but the plaintiff does             not agree, the people's court shall notify him to participate in the             litigation as the third person.                            Article 24 If two or more interested parties are concerned with the             same specific administrative act of the administrative authority,             and some interested parties refuses to comply with the specific             administrative act and take legal action, the people's court shall             notify the other interested parties that do not take legal action to             participate in the litigation as the third persons.             The third person shall enjoy the right to raise the claim relating             to the case, and if he refuses to comply with the Judgment of the             people's court of first instance, he shall enjoy the right to raise             the appeal.                            Article 25 If the interested party entrusts a law agent, he shall             submit the letter of entrustment signed or affixed the seal by the             principal to the people's court. The entrusted matters and the             specific power shall be clarified on the letter of entrustment. In             case of special circumstances under which the citizen is unable to             entrust in written forms, he may make the verbal entrustment. In             case of the verbal entrustment, the people's court shall verify it             and put it on file. If the accused authority or other authority             with the obligation of assist refuses the people's court to verify             the matter with the citizen whose personal freedom is restricted,             the entrustment shall be deemed to be true. If the interested party             cancels or changes the entrustment, he shall report to the people's             court in written forms, and the people's court shall notify the             other interested parties.                                           Chapter IV Evidence                                           Article 26 The defendant shall be liable to produce the evidence of             the specific administrative act in the administrative litigation.             The defendant shall submit the bill of defense within 10 days since             the date of the receipt of the copy of the indictment, along with             the evidence and basis at the time it executes the specific             administrative act. If the defendant fails the submission or             exceeds the time limit, it shall be regarded that the specific             administrative act is not based on the evidence and basis.                            Article 27 The plaintiff shall be liable to produce the evidence if             he             1. proves the conformity of the litigation to the statutory             requirements, except that the defendant considers that the             litigation of the plaintiff is beyond the time limit of the             litigation;             2. proves the facts of the application raised in the case of             nonfeasance of the defendant;             3. proves the damage resulted from the infringement of the accused             act in the administrative compensation litigation raised along with             the other case; or             4. is liable to produce the evidence otherwise.                            Article 28 The defendant may, with the permission of the people's             court, supplement the relevant evidence if             1. the defendant has collected the evidence when he executes the             specific administrative act, but is unable to provide the evidence             because of force majeure; or             2. the plaintiff or the third party raises the disproof or evidence             that he has not raised in the course of the execution of the             administrative act by the defendant in the course of the litigation.                                          Article 29 The people's court shall enjoy the right to obtain the             evidence if             1. the plaintiff, the third party or the law agent provides the             information of the evidence, but is unable to collect it, so he             applies to the people's court to obtain it; or             2. the interested party shall have provided but is unable to provide             the original document or the original article.                            Article 30 The following evidence shall not be used to determine the             legality of the accused specific administrative act:             1. The evidence that is collected by the defendant or its law agent             on himself after the execution of the specific administrative act;             or             2. Other evidence collected by the defendant seriously against the             legal procedure.                            Article 31 The evidence that is not cross-examined in the court             shall not be used as the basis of the Judgment of the people's             court.             The evidence collected by the review authority in the course of the             review shall not be used as the basis for the people's court to             maintain the original specific administrative act.             The evidence raised by the defendant in the people's court of second             instance that is not raised in the people's court of first instance             shall not be used as the basis for the people's court to revoke or             change the Judgment of first instance.                                           Chapter V Litigation and Acceptance                                           Article 32 The people's court shall establish the collegial bench to             examine the litigation raised by the plaintiff. If it conforms to             the requirements of litigation, the people's court shall place the             case of file within 7 days. And, if it fails to conform to the             requirements of litigation, the people's court shall order not to             accept the case within 7 days.             If unable to decide the acceptance within 7 days, the people's court             shall accept the case first. After acceptance, if, upon             examination, the case fails to conform to the requirements of             litigation, the people's court shall order to dismiss the             litigation.             If the people's court that receives the litigation does not either             place the case on file, or make the order within 7 days, the             litigant may raise appeal or take legal action in the superior             people's court. The superior people's court shall accept the case             if it agrees on the conformity of the case to the requirements of             litigation. After acceptance, the superior people's court may             transfer the case to or designate the subordinate people's court for             trial, or try the case by itself.             The time limit as stipulated in the previous three clauses shall             commence from the date of the receipt of the indictment by the             people's court. If the people's court orders the plaintiff to             supplement the contents of the indictment because it is             insufficient, the time limit shall commence from the date of the             receipt of the supplementary materials by the people's court.                            Article 33 If the laws and regulations stipulate that the review             shall be applied for at first, and the citizen, corporation or other             organization directly takes legal action without the application of             the review, the people's court shall not accept it.             If the review authority fails to accept the review application or             make the review decision within the legal time limit, and the             citizen, corporation or other organization refuses to comply with             and takes legal action, the people's court shall accept it.                            Article 34 If the laws and regulations do not stipulate the             administrative review as the necessary procedure before the             administrative litigation, and the citizen, corporation or other             organization both takes legal action and applies for the             administrative review, the authority that accepts the case the first             shall have jurisdiction. If the authorities accept the case at the             same time, it is up to the citizen, corporation or other             organization to select one of the authorities. If the citizen,             corporation or other organization has applied for the administrative             review, and in the legal time limit of the review, he takes legal             action, the people's court shall not accept it.                            Article 35 If the laws and regulations do not stipulate the             administrative review as the necessary procedure before the             administrative litigation, after the citizen, corporation or other             organization applies for the administrative review to the review             authority, he withdraws the review application with the consent of             the review authority, and takes legal action against the original             specific administrative act within the legal time limit of the             litigation, the people's court shall accept it according to law.                            Article 36 After the people's court orders to permit the plaintiff             to withdraw the litigation, if he takes legal action again on the             basis of the same facts and causes, the people's court shall not             accept it.             If the order to permit the withdrawal of the litigation is             incorrect, and the plaintiff applies for the retrial, the people's             court shall revoke the original order concerning the permission of             the withdrawal of the litigation according to the trial supervision             procedure, and retry the case.                            Article 37 If the plaintiff or the appellant fails to pay the costs             of acceptance in advance within the required time limit, and             furthermore, he does not raise the application for the delay,             reduction or release of the payment, or his application is not             approved, the case shall be handled as the voluntary withdrawal.             After the handling as the voluntary withdrawal, if the plaintiff or             the appellant takes legal action or raises the appeal again within             the legal time limit, and solves the problem of the advance of the             costs of action according to law, the people's court shall accept             it.                            Article 38 After the people's court judges to revoke the specific             administrative act of the administrative authority, if the citizen,             corporation or other organization refuses to comply with the             specific administrative act executed by the administrative authority             again, and takes legal action, the people's court shall accept it             according to law.                            Article 39 If the citizen, corporation or other organization applies             to the administrative authority for the performance of its legal             duty, the administrative authority fails to perform within 60 days             since the date of the receipt of the application, and so the             citizen, corporation or other organization takes legal action, the             people's court shall accept it according to law. If the laws,             rules, regulations and other normative documents otherwise stipulate             the time limit for the administrative authority to perform its duty,             the relevant regulations shall prevail.             If the specific administrative act requests the administrative             authority to perform its legal duty in order to protect his right of             person or right of property under the emergency, and the             administrative authority fails to perform, the period of litigation             shall not be restricted as stipulated in the previous clause.                            Article 40 If the administrative authority does not produce or serve             the legal instrument when it executes the specific administrative             act, and the citizen, corporation or other organization refuses to             comply with and takes legal action, so long as he can prove the             existence of the specific administrative act, the people's court             shall accept it according to law.                            Article 41 When the administrative authority executes the specific             administrative act, if it fails to notify the citizen, corporation             or other organization of his litigious rights or the time limit of             the litigation, the time limit of the litigation shall commence from             the date when the citizen, corporation or other organization knows             or shall know his litigious rights or the time limit of the             litigation. But, it shall not exceed 2 years at most since the date             when the contents of the specific administrative act is known or             shall be known.             In case of the review decision, if the citizen, corporation or other             organization is not notified of his litigious rights or the legal             time limit of the litigation, the previous clause shall be             applicable.                            Article 42 if the citizen, corporation or other organization does             not know the contents of the specific administrative act, the time             limit of the litigation shall commence from the date when the             contents of the specific administrative act is known or shall be             known. In case of the specific administrative act concerning the             real estate, if it exceeds 20 years since the date of the execution,             or in case of other specific administrative act, if it exceeds 5             years since the date of the execution, the people's court shall not             accept the case.                            Article 43 If the time limit of the litigation is exceeded not             because of the litigant・s own reasons, the time delayed shall not be             included in the period of the litigation. If the litigation is not             able to be raised because the right of personal freedom is             restricted, the time in which the right of personal freedom is             restricted shall not be included in the period of the litigation.                                           Chapter VI Trial and Judgment                                           Article 44 The case shall be ordered not to be accepted, or if             accepted, it shall be ordered to be dismissed, if             1. the matter petitioned fails to fall into the scope of power of             the administrative trial;             2. the litigant fails to be qualified as the litigious subject of             the plaintiff;             3. the litigant takes up a wrong defendant, and refuses to change;             4. the law stipulates that the person to execute the litigation             shall the legal or designated agent or representative, and the             litigant is not the legal or designated agent or representative;             5. it is the law agent that takes legal action, and the agency fails             to conform to the legal requirements;             6. the time of the litigation exceeds the legal time limit without             justifiable reasons;             7. the laws and regulations stipulate the administrative review as             the necessary procedure, but the administrative review is not             applied for;             8. the litigant takes legal action repetitiously;             9. the litigation is withdrawn, and the litigation is raised again             without justifiable reasons;             10. the litigious object is bound by the binding Judgment; or             11. the litigation fails to conform to the other legal requirements.                            If the above-mentioned circumstances can be supplemented or             rectified, the people・s court shall designate the time limit for the             supplementation or rectification. If the supplementation or             rectification is made within the designated time limit, the people・s             court shall accept it according to law.                            Article 45 After the copy of the indictment is served to the             defendant, if the plaintiff raises new claims, the people・s court             shall not allow it, except for the justifiable reasons.                            Article 46 The people・s court may decide the joint trial if             1. more than two administrative authorities execute the specific             administrative acts on the same fact according to different laws and             regulations, and the citizen, corporation or other organization             refuses to comply with and takes legal action in the same people・s             court;             2. the administrative authority executes the specific administrative             act on some citizens, corporations or other organizations             respectively based on the same fact, and the citizens, corporations             or other organizations refuse to comply with and take legal actions             in the same people・s court respectively;             3. in the course of the litigation, the defendant executes new             administrative act on the plaintiff, and the plaintiff refuses to             comply with and takes legal action in the same people・s court; or             4. the people・s court considers that it is appropriate for the joint             trial.                            Article 47 If the interested party applies for the withdrawal, he             shall clarify the reasons, and raise it before the commencement of             the trial. If he knows the particular of the withdrawal after the             commencement of the trial, he shall raise it before the winding-up             of the court debate.             The person to be challenged shall temporarily cease the work in the             case before the people・s court makes the decision on the withdrawal,             except that the emergent measures shall be taken on the case.             With regard to the application of withdrawal from the interested             party, the people・s court shall decide within 3 days either in             verbal or written forms.             If the applicant refuses to comply with the dismissal to his             application for withdrawal, he may apply for the review to the             people・s court that makes the decision for one time. During the             period of the review, the person challenged shall not cease his work             in the case. With regard to the review application, the people・s             court shall make the review decision within 3 days, and notify the             review applicant.                            Article 48 If in the case, because of the act of one of the             interested parties or other matters, it may be impossible or             difficult to execute the specific administrative act or the binding             Judgment of the people・s court, the people・s court may order the             attachment according to the application of the other interested             party. If the interested party does not raise the application, the             people・s court may also take the measures of attachment if necessary             according to law.             When the people・s court tries the case in which the administrative             authority fails to issue the survivor・s pension, social insurance,             minimum living costs, etc. according to law, the people・s court may             order the preliminary execution in written forms according to the             application of the plaintiff.             If the interested party refuses to comply with the order of             attachment or preliminary execution, he may apply for the review.             And the execution of the order shall not be suspended in the course             of the review.                            Article 49 If upon legal summons, the plaintiff or appellant fails             to appear in the court without justification, or withdraws from the             court at midway without the permission of the court, the case may be             handled as withdrawal.             If the plaintiff or appellant applies for the withdrawal of the             case, and people・s court orders the non-permission, and upon legal             summons, the plaintiff or appellant fails to appear in the court             without justification, or withdraws from the court at midway without             the permission of the court, the people・s court may judge by             default.             If the third person, upon legal summons, fails to appear in the             court without justification, or withdraws from the court at midway             without the permission of the court, the trial of the case shall not             be affected.                            Article 50 If the defendant changes the specific administrative act             in the course of trial of first instance, it shall notify the             people・s court in written forms.             If the plaintiff or the third party refuses to comply with the             changed act and takes legal action, the people・s court shall try the             case in terms of the changed specific administrative act.             If the defendant changes its original specific administrative act,             and the plaintiff refuses to withdraw the case, and the people・s             court considers the original specific administrative act is illegal             upon examination, the people・s court shall judge to confirm the             illegality. And if the people・s court considers the original             specific administrative act is legal, it shall judge to dismiss the             plaintiff・s litigious petition.             If the plaintiff takes legal action against the defendant in terms             of nonfeasance, and the defendant executes the specific             administrative act in the course of the litigation, and the             plaintiff refuses to withdraw the case, the case shall be handled             with reference to the above-mentioned regulations.                            Article 51 In the course of the action, it shall be discontinued if             1. the plaintiff is dead, and the case has to wait for his close             relatives to clarify whether to participate in the litigation or             not;             2. the plaintiff loses his litigious capacity for action, and the             legal agent is not determined yet;             3. the administrative authority, corporation or other organization             ceases to exist as one of the parties, and the bear to assume the             power and obligation is not determined yet;             4. one of the parties is not able to participate in the litigation             because of force majeure;             5. the case is concerned with the applicability of the law, and has             to be submitted to the authorized institution for the interpretation             or confirmation;             6. the trial of the case is based on the result of the trial of the             relevant civil, criminal or other administrative case, and the             relevant case is not wound up; or             7. shall be discontinued otherwise.             The action shall be restored when the causes of the discontinuance             of the action disappear.                            Article 52 The action shall be terminated in the course of the             action if             1. the plaintiff dies, and he has no close relatives, or his close             relatives give up the litigious rights; or             2. the corporation or other organization ceases to exist as a             plaintiff, its successor to its rights and obligations give up the             litigious rights.             If the discontinuance of the action because of the causes specified             in Item 1, Item 2 or Item 3 of Article 51 of the Interpretation             exceeds 90 days, and nobody continues the action, the action shall             be ordered to be terminated, except for the special circumstances.                                          Article 53 If the review decision maintains the original specific             administrative act, while the people・s court judges to revoke the             original specific administrative act, the review decision shall be             nullified automatically.             If the review decision incorrectly changes the original specific             administrative act, and the people・s court judges to revoke the             review decision, the people・s court shall order the authority that             makes the review decision to make a new review decision.                            Article 54 If the people・s court judges the defendant to execute a             new specific administrative act, and the new specific administrative             act is the same with the original specific administrative act in             terms of the consequence, but the major facts or causes changes,             Article 55 of the Administrative Procedure Law shall not be             applicable to the circumstances.             If the people・s court judges to revoke the accused specific             administrative act because of the breach of the legal procedure, the             new specific administrative act executed by the administrative             authority shall not be under the application of Article 55 of the             Administrative Procedure Law.             If the administrative authority executes a new specific             administrative act that is basically the same with the original             specific administrative act on the same facts or causes, the             people・s court shall revoke the whole or part of the specific             administrative act according to Item 2 of Article 54 and Article 55             of the Administrative Procedure Law, and shall handle the matter             according to Clause 3 of Article 65 of the Administrative Procedure             Law.                            Article 55 The people・s court shall not aggravate the punishment on             the plaintiff in the trial of the administrative case, except that             the interested party is one of the coplaintiffs.             The people・s court shall not directly impose the administrative             sanction on the person that is not sanctioned by the administrative             authority.                            Article 56 The people・s court shall judge to dismiss the plaintiff・s             claim if             1. the causes of nonfeasance to prosecute the defendant fails to be             true;             2. the accused specific administrative act is legal but is not             rationale;             3. the accused specific administrative act is legal but shall be             changed or nullified because of the changes in the laws and             policies; or             4. the claim shall be dismissed by the Judgment otherwise.                            Article 57 If the people・s court considers the accused specific             administrative act is legal, but it is not appropriate to maintain             it or dismiss the claim by the Judgment, the people・s court may             judge to confirm the legality or validity of the specific             administrative act.             The people・s court shall judge to confirm the illegality or             invalidity of the accused specific administrative act if             1. the defendant fails to perform its legal duty, but it is             meaningless to order the performance of its legal duty by the             Judgment;             2. the accused specific administrative act is illegal, but there are             not contents to be revoked; or             3. the accused specific administrative act shall not establish or be             invalid according to law.                            Article 58 If the accused specific administrative act breaches the             law, but to revoke the specific administrative act will cause major             damages to the state or public interests, the people・s court shall             judge to confirm the illegality of the accused specific             administrative act, and order the administrative authority to make             the corresponding remedial measures, and if any damage occurs, the             people・s court shall judge the administrative authority to bear the             liability of compensation.                            Article 59 If that, according to Item 2 of Article 54 of the             Administrative Procedure Law, the people・s court judges to revoke             the specific administrative act will cause major damages to the             interests of the state, public or other persons, and when the             people・s judges to revoke it, the people・s court may             1. judge the defendant to execute a new specific administrative act;                           2. order the accused authority to make the corresponding remedial             measures;             3. raise the judicial suggestions to the defendant or the relevant             authority; or             4. suggest the authorized authority to handle the matter according             to law in case of the discovery of the illegalities or crimes.                            Article 60 If the people・s court judges the defendant to execute a             new specific administrative act, and if the new specific             administrative act is not executed in time so as to cause the damage             to the interests of the state, public or interested party, the             people・s court may designate the time limit for the execution of the             new specific administrative act.             If the people・s court judges the defendant to perform its legal             duty, it shall designate the time limit of the performance, except             that it is difficult to determine the time limit under special             circumstances.                            Article 61 If the award by the defendant on the civil dispute             between equal subjects is illegal, and the interested parties of the             civil dispute request the people・s court to solve the relevant civil             dispute, the people・s court may try the cases together.                            Article 62 If the interpretations of the Supreme People・s Court are             applicable to the trial of administrative case by the people・s             court, they shall be quoted in the Judgment instrument.             In the trial of the administrative case, the people・s court may             quote the legal and valid regulations and rules and other normative             documents in the Judgment instrument.                            Article 63 The order is applicable to             1. the non-acceptance of the case;             2. the dismissal of the litigation;             3. the jurisdictional protest;             4. the termination of the action;             5. the discontinuance the action;             6. the transfer or designated jurisdiction;             7. the suspension of the specific administrative act or dismissal of             the application for the suspension in the course of the action;             8. the attachment;             9. the preliminary execution;             10. the permission or non-permission of the withdrawal of the case;             11. the rectification of the clerical error in the Judgment             instrument;             12. the suspension or termination of the execution;             13. the removal of the case for a trial, order for a retrial or             remand for new trial;             14. the permission or non-permission of the execution of the             specific administrative act of the administrative authority; or             15. other matters that need to be ordered.             The interested party may raise the appeal against the order in Items             1, 2 or 3.                            Article 64 The time limit of the trial as stipulated in Article 57             and Article 60 of the Administrative Procedure Law shall mean the             period from the date of filing the case to the date of declaration             of the Judgment. The time of the certification, handling the             jurisdictional dispute or objection, or discontinuance of the action             shall not be included.                            Article 65 After the people・s court of first instance judges or             orders, if the interested parties all raise the appeal, all of the             interested parties are the appellants.             If part of the interested parties raise the appeal, the opposite             interested parties that do not raise the appeal shall be the             respondents, and the other interested parties shall be listed             according to the status in the litigation of first instance.                            Article 66 The respondent shall prepare the copies of the petition             for appeal according to the numbers of the other interested parties             or litigious representatives.             After the receipt of the petition for appeal, the people・s court of             original trial shall serve the copies of the petition for appeal to             the other interested parties within 5 days, and the opposite             interested party shall raise the bill of defense within 10 days             since the date of the receipt of the copy of the petition for             appeal.             The people・s court of original trial shall serve the copies of the             bill of defense to the interested parties within 5 days since the             date of the receipt of the bill of defense.             After the receipt of the petition for appeal and bill of defense,             the people・s court shall, along with the files and evidence, submit             them to the people・s court of second instance within 5 days. And             the costs of action, if received in advance, shall also be             submitted.                            Article 67 The people・s court of second instance shall             comprehensively examine the Judgment of the people・s court of first             instance and the legality of the accused specific administrative act             as well in the course of the trial of the case of appeal.             The people・s court shall hold a hearing if the interested party             disputes over the facts determined by the people・s court of original             trial, or the people・s court of second instance considers that the             people・s court of original trial fails to determine the facts             clearly.                            Article 68 If upon trial, the people・s court of second instance             considers that the order of non-acceptance or dismissal of the             litigation of the people・s court of original trial is really             incorrect, and the litigation conforms to the legal requirements,             the people・s court of second instance shall order to revoke the             order of the people・s court of original trial, and instruct the             people・s court of original trial to place the case of file and             accept it or continue the trial according to law.                            Article 69 With regard to the administrative case that is ordered by             the people・s court of second instance to be remanded for a retrial             by the people・s court of original trial, the people・s court of             original trial shall constitute a new collegial bench to try the             case.                            Article 70 If the original Judgment needs to be changed in the             course of the trial of the case of appeal, the people・s court shall             make the Judgment for the accused specific administrative act at the             same time.                            Article 71 If the necessary interested party or the claim is omitted             in the original Judgment, the people・s court shall order to revoke             the original Judgment and remand for a retrial.             If the administrative compensation petition is omitted in the             original Judgment, and the people・s court of second instance             considers that the compensation shall not be offered according to             law, it shall judge to dismiss the administrative compensation             petition.             If the administrative compensation petition is omitted in the             original Judgment, and the people・s court of second instance             considers that the compensation shall be offered according to law,             when it confirms the illegality of the accused specific             administrative act, the people・s court of second instance may             mediate the problem of the administrative compensation, and if the             mediation is not successful, the people・s court of second instance             shall remand for a retrial on the administrative compensation.             If the interested party raises the administrative compensation             petition in the second trial, the people・s court of second instance             may mediate, and if the mediation is not successful, the people・s             court of second instance shall notify the interested party to take             another legal action.                            Article 72 It is against the laws and regulations as stipulated in             Article 63 of the Administrative Procedure Law if             1. the major evidence of the facts determined by the original             Judgment or order is not sufficient;             2. the application of laws and regulations of the original Judgment             or order is incorrect;             3. the legal procedure is breached as to possibly affect the correct             Judgment of the case; or             4. it is against the laws and regulations otherwise.                            Article 73 The application for a retrial by the interested party             shall be raised within 2 years after the Judgment or order comes             into force.             With regard to the binding mediation paper of the administrative             compensation, if the interested party proves that the mediation is             against his own free will, or the contents of the mediation             agreement is against the law, he may apply for a retrial within 2             years.                            Article 74 After the receipt of the application for a retrial of the             interested party, if upon examination, the application conforms to             the requirements of the retrial, the people・s court shall place the             case on file, and notify all of the interested parties. If the             application fails to conform to the requirements of the retrial, the             people・s court shall dismiss the application.                            Article 75 The people・s court shall retry the case that is protested             by the people・s procuratorate according to the trial supervision             procedure.             When the people・s court holds a hearing on the case of protest, it             shall notify the people・s procuratorate to send personnel to appear             in the court.                            Article 76 With regard to the case retried by the people・s court             according to the trial supervision procedure, if the binding             Judgment or order is made by the people・s court of first instance,             the case shall be tried according to the procedure of first             instance, and the interested party may appeal against the Judgment             or order so made. If the binding Judgment or order is made by the             people・s court of second instance, the case shall be tried according             to the procedure of second instance, and the Judgment or order so             made shall be binding. If the higher people・s court removes the             case for trial according to the trial supervision procedure, the             case shall be tried according to the procedure of second instance,             and the Judgment or order so made shall be binding.             In case of the retrial of the case, the people・s court shall             establish another collegial bench.                            Article 77 With regard to the retrial of the case according to the             trial supervision procedure, the people・s court shall order to             suspend the execution of the original Judgment. The order shall be             signed by the president, and be affixed with the seal of the             people・s court.                            If the higher people・s court decides to remove the case for trial or             designate the lower people・s court for retrial, it shall make an             order on which the suspension of the original Judgment shall be             clarified. And in case of emergency, the higher people・s court may             verbally notify the people・s court that is responsible for the             execution or makes the binding Judgment or order of the order of the             suspension of the execution, but the order shall be issued within 10             days after the verbal notice.                            Article 78 In case of the retrial of the case, if the people・s court             considers that the original binding Judgment or order is incorrect,             when it revokes the original binding Judgment or order, it may make             the corresponding Judgment with respect to the contents of the             binding Judgment or order. And it may also order to revoke the             binding Judgment or order, and remand the case for retrial to the             people・s court that makes the binding Judgment or order.                            Article 79 When the people・s court tries the case of second instance             or retries the case, it shall handle the mistakes of the people・s             court of original trial in terms of the acceptance, non-acceptance             and dismissal of the litigation respectively as follows:             1. After the people・s court of first instance makes the substantial             Judgment, if the people・s court of second instance considers that             the case shall not be accepted, when it revokes the Judgment of the             people・s court of first instance, it may remand for retrial, or             directly dismiss the litigation;             2. If it is incorrect for the people・s court of second instance to             maintain the order of non-acceptance made by the people・s court of             first instance, the people・s court for retrial shall revoke the             orders of the people・s courts of first instance and second instance,             and shall designate the people・s court of first instance to accept             the case; or             3. If it is incorrect for the people・s court of second instance to             maintain the order of dismissal of the litigation made by the             people・s court of first instance, the people・s court for retrial             shall revoke the orders of the people・s courts of first instance and             second instance, and shall designate the people・s court of first             instance to try the case.                            Article 80 When the people・s court tries the case of retrial, it             shall order to remand the case for retrial to the people・s court             that makes the binding Judgment or order, if, with respect to the             binding Judgment or order,             1. the judge personnel and clerk of the case shall withdraw but fail             to do so;             2. the hearing shall be held according to law, but the Judgment is             made without the hearing;             3. the Judgment is made by default without the legal summons of the             interested party;             4. the interested party that shall participate in the action is             omitted;             5. the claim relating to the case is not judged; or             6. the legal procedure is breached otherwise as to affect the             correct Judgment of the case.                            Article 81 The time limit of the trial as stipulated in Article 57             of the Administrative Procedure Law shall be applicable to the case             of retrial tried according to the procedure of first instance.             The time limit of the trial as stipulated in Article 60 of the             Administrative Procedure Law shall be applicable to the case of             retrial tried according to the procedure of second instance.                            Article 82 The basic people・s court shall directly submit the             application for the extension of the time limit of the trial to the             high people・s court for approval, and shall submit to the             intermediate people・s court for reference at the same time.                                           Chapter VII Execution                                           Article 83 With regard to the binding administrative Judgment,             order, compensation Judgment or compensation mediation paper, if the             obligatory interested party refuses to perform, the opposite party             may apply for the enforcement to the people・s court according to             law.                            Article 84 If the applicant is the citizen, the time limit for the             execution of the binding administrative Judgment, order,             compensation Judgment or compensation mediation paper shall be 1             year. And if the applicant is the administrative authority,             corporation or other organization, the time limit shall be 180 days.                             The time limit for the application of the execution shall commence             from the last date of performance as stipulated in the legal             instrument. And if the legal instrument does not stipulate the time             limit of the performance, the time limit for the application of the             execution shall commence from the date when the legal instrument is             served to the interested party.             If the application exceeds the time limit, the people・s court shall             not accept it, except for the justifiable causes.                            Article 85 The people・s court of first instance shall execute the             binding administrative Judgment, order, compensation Judgment or             compensation mediation paper.             If the people・s court of first instance considers the people・s court             of second instance shall perform the execution under special             circumstances, it may submit the case to the people・s court of             second instance for the execution. The people・s court of second             instance may decide to execute the case, or decide that the people・s             court of first instance shall execute the case.                            Article 86 If the administrative authority applies for the execution             of its specific administrative act according to Article 66 of the             Administrative Procedure Law, the following preconditions shall be             observed:             1. The specific administrative act may be executed by the people・s             court according to law;             2. The specific administrative act has come into force, and has the             contents for the execution;             3. The applicant is the administrative authority or organization             under the authorization of the laws, regulations or rules that makes             the specific administrative act;             4. The party against whom the application is filed is the obligator             determined by the specific administrative act;             5. The party against whom the application is filed fails to perform             his obligations within the time limit designated by the specific             administrative act, or the time limit otherwise designated by the             administrative authority;             6. The applicant shall raise the application within the legal time             limit; and             7. The administrative case of which the execution is applied shall             be under the jurisdiction of the people・s court that accepts the             application of the execution.             The people・s court shall place the case on file if the application             conforms to the requirements, and shall notify the applicant. And             the people・s court shall order not to accept the case if the             application fails to conform to the requirements.                            Article 87 If the laws and regulations do not grant the power of             enforcement upon the administrative authority, and the             administrative authority applies for the enforcement to the people・s             court, the people・s court shall accept it according to law.             If the laws and regulations stipulate that the administrative             authority may execute the enforcement according to law, or apply for             the enforcement to the people・s court, and the administrative             authority applies for the enforcement to the people・s court, the             people・s court may accept it according to law.                            Article 88 If the administrative authority applies for the             enforcement of its specific administrative act to the people・s             court, it shall raise the application within 180 days since the date             of expiration of the legal time limit for the person against whom             the specific administrative act is being executed. If the             application exceeds the time limit, the people・s court shall not             accept it, except for the justifiable causes.                            Article 89 If the administrative authority applies for the             enforcement of its specific administrative act to the people・s             court, the basic people・s court in the place of the residence of the             applicant shall accept it. And if the object for the execution is             the real estate, the basic people・s court in the place of the real             estate shall accept it. If the basic people・s court considers that             it is difficult for the execution, it may submit the case to the             higher people・s court for the execution. The higher people・s court             may decide to execute the case, or decide that the lower people・s             court shall execute the case.                            Article 90 After the administrative authority makes the award on the             civil dispute between the equal subjects under the authorization of             the law, if the interested party fails to take legal action or             perform the award within the legal time limit, and the             administrative authority that makes the award fails to apply for the             enforcement to the people・s court within the time limit for the             application for the execution, the obligator, or his successor, or             the bearer to his rights determined by the binding specific             administrative act may apply for the enforcement to the people・s             court within 90 days.             If the citizen, corporation, or other organization that enjoys the             rights applies to the people・s court for the enforcement of the             specific administrative act, the regulations of the enforcement of             the specific administrative act for which the administrative             authority applies to the people・s court may be referenced.                            Article 91 If the administrative authority applies for the             enforcement of the specific administrative act to the people・s             court, it shall submit the application of the enforcement, the             administrative legal instrument on which the execution is based, the             material to prove the legality of the specific administrative act,             the status of the property of the person to be executed and other             necessary materials.             If the citizen, corporation, or other organization that enjoys the             rights applies to the people・s court for the enforcement, the             people・s court shall obtain the relevant materials from the             administrative authority that makes the award.                            Article 92 Before the application of the enforcement to the people・s             court, if the administrative authority or the obligee determined by             the specific administrative act justifiably considers that the             person to be executed may avoid the execution, he may apply for the             attachment to the people・s court. And if the latter applies for the             enforcement, he shall provide the corresponding property as the             surety.                            Article 93 After accepting the case of application for the execution             of the specific administrative act of the administrative authority,             the people・s court shall designate the administrative trial division             to establish the collegial bench to examine the legality of the             specific administrative act, and shall order whether to permit the             enforcement. If the enforcement is necessary, the division of the             people・s court that is responsible for the enforcement of the             non-litigious administrative act shall execute the case.                            Article 94 In the course of the action, if the defendant or the             obligee determined by the specific administrative act applies for             the execution of the accused specific administrative act to the             people・s court, the people・s court shall not execute it. But if the             non-execution in time may cause irremediable damages to the             interests of this Country or the public, or the legal rights and             interests of other person, the people・s court may preliminarily             execute it. And if the latter applies for the enforcement, he shall             provide the corresponding property as the surety.                            Article 95 The people・s court shall order to terminate the execution             if the specific administrative act of the execution that is applied             for             1. obviously lacks the factual basis;             2. obviously lacks the legal basis; or             3. obviously breaches the law and infringes upon the legal rights             and interest of the person to be executed.                            Article 96 If the administrative authority refuses to perform the             binding Judgment or order of the people・s court, the people・s court             may handle the matter according to Clause 3 of Article 65 of the             Administrative Procedure Law, and may impose the fines upon the             leading official or the personnel directly responsible with             reference of Article 102 of the Civil Procedure Law,                                           Chapter VIII Miscellaneous                                           Article 97 In the course of the trial of the administrative case, in             addition to following the Administrative Procedure Law and the             Interpretation, the people・s court may reference the relevant             regulations concerning the civil litigation.                            Article 98 The Interpretation shall be implemented as of the issue             date, and the Guidelines of the Supreme People・s Court on the             Execution of the Administrative Procedure Law of the People・s             Republic of China shall be null and void at the same time. In case             of any conflicts between any previous interpretations made by the             Supreme People・s Court or the normative documents issued jointly             with relevant authorities heretofore and the Interpretation, the             Interpretation shall be nullified, and the Interpretation shall             prevail.                             About Us | Partners | Professional Team | User Guide | Disclaimer |       Privacy Policy       iSinoLaw Copyright 2000. All Rights Reserved       禪柆仍隈舵鹿妖井幡侭嗤 [log in to unmask]: Use this address for postings and replies - Email text body 'SIGNOFF int-law' to: [log in to unmask] **DISCLAIMER: The opinions expressed on this list are those of the authors and do not necessarily reflect the opinions of CIESIN, its staff, or CIESIN's sponsors.

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